In 2018, the authors of the bestselling book “The Coddling of the American Mind” suggested that the recent rise of safe spaces and “safetyism” stems from America’s “obsession with eliminating threats (both real and imagined).” Safetyism places self-perceived safety above all other concerns.
This focus on safety has been imported into the workplace, where work-related injuries and fatalities are on the rise—according to the latest data from the US Bureau of Labor Statistics, workplace injuries went up 4.5% from 2021 to 2022, while fatalities went up 8.9% from 2020 to 2021.
In products liability litigation arising from those injuries and fatalities, jurors expect products—especially safety products—to work every time, no matter what. When they don’t, manufacturers risk unprecedented verdicts reaching billions of dollars.
But what happens when there are no facts about what actually occurred?
Consider, for example, a climber scaling a cellphone tower using a fall arrest system intended to prevent that climber from falling. If the climber falls and nobody knows what happened, the situation facing the fall protection equipment manufacturer could be dire. To be sure, a jury will be primed to blame the manufacturer and side with the plaintiff simply because a safety product should work every single time. And if the manufacturer cannot explain what happened—because there are no facts or physical evidence to indicate what happened—it will be left holding the bag regardless of the plaintiff’s burden of proof.
Manufacturers of safety equipment must be mindful of the “safetyism“ approach that will permeate the jury and address it head-on.
Manufacturers can (and should) take the following steps to defend themselves against potential failures in the field that cannot be or are difficult to explain.
Compile Supporting Product Documentation
First, a manufacturer must develop—and document—the evidence that proves its product works when used and used correctly.
- Product development records, such as risk analysis and Failure Modes and Effects Analysis (FMEA), should be organized, well-documented, and complete. Be creative and thorough in identifying foreseeable misuses.
- Work with third-party consultants is encouraged and should also be documented. The purpose and involvement of third parties should be clear and objectives-driven.
- Testing records, including research and development, should similarly be organized, well-documented, and complete. Manufacturers should not stop at minimum testing; rather, testing should exceed minimum standards and even account for field use where feasible.
- A continued recertification testing program should be implemented to ensure consistent quality and manufacturing processes. This process should also be documented and organized.
These steps will demonstrate—with actual evidence—that the manufacturer’s product works as intended.
Solicit and Gather Product Use Feedback
Second, a manufacturer must have a documented quality control feedback loop to ensure products remain safe while used in the field.
- Complaints and incidents involving the product should be affirmatively solicited, documented, reviewed, and addressed. Product review committees are a useful way to establish a manufacturer’s principle focus and priority of safety.
- Manufacturers should, wherever feasible, participate in incident investigations to stay abreast of the facts in real time while helping to ensure all relevant facts and issues are accounted for and documented.
- Manufacturers should carefully consider and then document product notices and recalls, as those decisions can potentially open the proverbial litigation floodgates.
Identify and Involve Subject-Matter Experts
Third, manufacturers should engage subject-matter experts throughout the development and eventual use phases of a product (especially safety products and when odd things arise).
By engaging such expertise early, manufacturers can better stay informed on what is happening during those essential phases, document and address what is necessary to address, and be better prepared to deal with incidents when they do occur.
Promote a Culture of Careful Communications
Fourth, manufacturers must train employees—especially engineers—regarding best practices for creating careful communications. Bad documents and emails about products are easily taken out of context in litigation and can have detrimental impacts on how jurors eventually view those products.
A few recommended tips:
- Focus on the facts—document what you know.
- Avoid speculating about causation or fault.
- Do not attempt to be funny or make fun of anyone.
- Do not exaggerate or use inflammatory language.
- Do not mix financial and safety issues—safety always comes first.
- Be respectful in describing the words and actions of others.
- Close the loop—do not leave bad emails or customer inquiries unanswered.
- Protect privileged communications.
- Limit the distribution of communications to those who need to know wherever possible.
- Assume anything you write will go before a jury.
Harvest Information Regarding Similar Incidents
Finally, manufacturers must stay involved in reported product issues, incidents or other allegedly similar accidents involving their products. Gather information about previous, similar incidents from court documents and proceedings, OSHA reports and findings, ANSI/industry meeting minutes, and information from other regulatory committees or bodies. Courts are permitting evidence of “similar“ incidents with more frequency, which can inflame jurors and lead to devastating, thermonuclear verdicts. Gathering evidence about such incidents is the key to defending against this line of attack. Bottom line: Know what is out there before they do.
By following the above steps, manufacturers will find themselves better positioned to defend their products if and when failures happen in the field, even when there are no eyewitnesses or contemporaneous evidence to establish what actually happened.
Preparation is key to arming a corporate representative with the information necessary to establish the safety of the product at issue, its history, and the company’s proactive efforts to put safety first.
